It is easy to assume that reforming the handling of indistinct covert recordings will benefit the defence and make it harder for prosecution to convict the real crooks. However this is not right.
Admitting indistinct audio with a reliable, easy-to-use transcript benefits the court as a whole, and makes it easier for prosecution to present a valid case about the contents of the recording.
The overall goal of the trial process is to ensure that justice is done, i.e. that guilty defendants are found guilty and those not guilty are found not guilty.
However, we have an adversarial system. That means that in any individual trial, the goal of both prosecution and defence is simply to win that individual trial.
Consider an example
Let’s say police have an indistinct covert recording containing speech they believe supports their case. They make a transcript to demonstrate what they hear. Prosecution seek to have the police transcript admitted to assist the jury in hearing the indistinct speech the way police do.
Remember that, during a trial, the goal of defence is only to cast doubt on the prosecution case. They don’t have to provide an accurate transcript of the recording. All they have to do is give reason to doubt the reliability of the police version.
Now here’s the thing
Transcription of indistinct audio is a far more difficult task than is usually recognised. Even if you were present during a conversation and heard everything clearly at the time, it is amazingly hard to transcribe every word of an indistinct recording of the conversation. So let’s assume for the sake of argument that the police are right in their general interpretation of the indistinct recording. Even so, their transcript will inevitably have errors, omissions and inaccuracies.
So if the defence take the trouble to review the transcript carefully, it will be easy for them to find something relevant to query. It might even be easy for them to brief an expert to back up their argument that relevant parts of the transcript are unreliable**.
An enormous amount of argument can ensue, often focusing on whether a particular word was or was not used by speakers in the recording (see examples elsewhere of how this has happened in real cases).
Finally, the decision about which transcript, if any, is given to the jury will come down to the opinion of the trial judge, based on his or her interpretation of legal considerations – a very different thing from deciding the reliability of a transcript on the basis of phonetic analysis.
Surely it is better for both prosecution and defence, and for the trial process as a whole, to have a reliable, usable transcript produced by an independent professional, appropriately briefed about relevant contextual information.
Again we can make a direct analogy with the change involved in moving from reliance on police notes to routine insistence on recorded interviews. The ability to rely on recorded interviews is appreciated by prosecution at least as much as by defence.
** Some suggest it is up to the expert to examine the transcript as a whole – but an expert can only do what they are asked to do, with the information they are given.